The Supreme Court of Canada’s decision on compensation for the families of Giant Mine workers murdered by a striking worker affirms government and security companies have a duty of care, and opens the door for suits to be brought against unions that incite violence by members, says veteran labour litigator Stephen Gleave.
In Fullowka v. Pinkerton’s of Canada Ltd., Justice Thomas Cromwell allowed a two-step process to decide whether the union was liable for the actions of its workers.
The SCC concluded the first step was not met because there was no direct interaction between the national union and convicted murderer Robert Warren. Therefore the union could not be held liable.
Gleave, a partner with Hicks Morley Hamilton Stewart Storie LLP in Toronto, says that two-step process means the court did not dismiss the case out of hand. Therefore, if evidence can be brought of direct control or incitement of violence by union leadership over members, then an action can be brought against the union controlling the strike, whether that be a national office or a local one.
“Whoever is in control can now have this prima facie duty of care imposed on them and if they are involved in orchestrating or inciting their members to commit tortuous or otherwise violent acts they can be found liable whether it is jointly, vicariously, or directly,” he says.
Gleave says this contradicts the belief, at least in Ontario, that unions cannot be sued.
“Many people think you can’t sue a trade union,” he says. “During strikes the unions in Ontario use many activities in support of their bargaining position . . . they blockage the premises, there can be violence on and off the picket line, there can be intimidation and harassment of men and women in the community itself and in the workplace, all in an effort that they can succeed in a collective bargaining process.
“Now there is a prima facie duty of care imposed on trade unions on how their members behave during the course of a lawful strike.”
On Sept. 18, 1992, a bomb was exploded in a shaft of the Giant Mine near Yellowknife, N.W.T. The miners had been on strike since May and one of the striking workers Warren — fired by Royal Oak Mines Inc. following a riot in June — was later convicted of the murder of nine miners killed by the explosion.
The family members of those who died and miner James O’Neil, who found the murdered miners, had launched a successful action in 1994 at the Supreme Court of the Northwest Territories suing the government, Pinkerton’s security company, and the national union, the Canadian Association of Smelter and Allied Workers — which has since been merged with the Canadian Auto Workers union.
The N.W.T. Court of Appeal later overturned the Fullowka decision, the Supreme Court of Canada upheld that decision.
The Supreme Court, however, did agree with the lower court that both government and the security company had a duty of care to the miners. However, the SCC said the trial judge erred when deciding the standard of care had not been met.
Jeff Champion, the counsel who argued the case on behalf of appellants at the Supreme Court, says while he is disappointed by the ruling, he is encouraged the ruling upholds the duty of care. He says the ruling does not exonerate the government or security companies, rather it points to errors by the trial judge.
“In essence the security companies and the government were not exonerated, but the findings against them were struck down,” he says.
On the issue of the conduct of unions during a labour action, Champion says they argued a union operates through the actions of its members. However, he says the Supreme Court did not agree.
“The Supreme Court quite clearly said that a union is not going to be responsible in law for the actions of its members if a strike turns ugly, and that was pretty clear from the judgment that came out last week,” he says.
“It may be that some people in Canada have concerns about that type of a ruling, but as it stands now, the unions will not be liable in circumstances like this for the violence of its members.”
CAW legal department director Lewis Gottheil says the ruling clarifies various points of labour law by saying, “a national union and a local union are distinct legal entities which are not generally liable at law for the actions of the other.”
While Gleave may believe the ruling means unions can be held liable for inciting violence by members during a labour action, Gottheil says the decision shows labour groups are not liable for everything members do while on strike.
“The Supreme Court has indicated that the legal concept of vicarious liability doesn’t apply to unions in a situation where a ‘rogue’ member in the course of a labour dispute commits an unlawful act,” says Gottheil.
“In other words, the fact that Roger Warren was a unionized worker on strike did not make his union responsible for the actions he took.”